Law & Law Enforcement

I Thought Disney Lost Its Copyright on Mickey Mouse Today. Uh, NO…

/ Jack Marshall / 6 Comments

A little over a week ago, I wrote (in Item #3),

As the capper on a really bad year for Disney, Mickey Mouse finally loses its copyright protection on Jan. 1, 2024, and goes into the public domain. Disney unethically used its lobbying power to use its iconic founding rodent to persuade the U.S. Congress to extend copyright protection beyond all reason. Disney’s monopoly over Mickey will end95 years after his debut in the short film “Steamboat Willie,” long, long after the original copyright protection would have expired based on the correct theory that once an artist has gleaned a reasonable benefit and profit from a creation, it benefits the culture and society to be able to use the work to spark innovation and new uses for the original work.

As Carnac the Great would say, “Wrong, Ethics-Breath!”

Disney still has its hooks into Mickey, as the company continues to warp U.S. intellectual property law, setting the precedents for other properties to avoid the public domain far longer than is healthy for the culture. Yes, the original Mickey of 1928’s trailblazing Disney cartoon “Steamboat Willie” (above) has lost its copyright, but not this Mickey,

…or this Mickey,

or this Mickey,

or this one,

Continue reading →

Dentist Ethics Drill! [Multiple Updates and Corrections]

/ Jack Marshall / 15 Comments

This is a bridge from the previous post, since it also involves Minnesota, and gives some teeth to my argument that the Land o’ Lakes is facing a brush with ethics decay. At the root of our tale some yawning cavities in the ethical hygiene of a dental professional. (Note my generous restraint in leaving quite a few potential puns for you to add in the comments. Consider the challenge a moment of tooth, er, truth.)

But I digress. Dr. Kevin Molldrem and Molldrem Family Dentistry face a lawsuit from a disgruntled patient, Kathleen Wilson, who claims the Eden Prairie dentist harmed her in the process of performing over 30 dental procedures in a single five hour appointment. Molldrem, she alleges, put in eight crowns, did four root canals and filled the cavities in 20 teeth during a single visit in July 2020. In the process, according to the lawsuit, Molldrem used anesthesia “well in excess of (the) recommended dosage” and engaged in “falsifying medical records” regarding the amount administered.

Update 1: I finally have the complaint (thanks to JutGory). The news reports did not accurately convey the sense of the lawsuit, concentrating excessively on the sensational feature of all that dental work at a single session. The complaint’s complaints are:

—“Plaintiff has incurred and will continue to incur medical costs for the dental care required to address the harms caused by Dr. Molldrem’s negligence.”

—“Plaintiff has incurred and will continue to incur lost income and loss of earning capacity as a direct result of Dr. Molldrem’s negligence.”

—“Plaintiff has endured and will continue to endure pain and suffering, embarrassment, emotional distress, and disfigurement as a direct result of Dr. Molldrem’s negligence.”

Update 2: The complaint also accuses the dentist of failing “to create a care plan that would effectively address decay and tooth dissolution” and “failing to control gingival inflammation and bleeding” during the lengthy visit. That’s the harm alleged, as well as damage that required repair by other dentists. Based on what was revealed about the suit in the media and the fact that the expert report for the plaintiff mentions “trauma,” discomfort” and “anxiety,” I assumed that pain and suffering were also alleged in the suit, as they virtually always are when medical negligence is involved. And sure enough, they were. However, my statement in the original post that the suit claims the dentist’s marathon session “caused great pain and suffering” was speculation stated as fact, so I’ve removed it.

***

Continue reading →

A Supreme Court Section 3 Ruling Preview?

/ Jack Marshall / 12 Comments

Over at the Volokh Conspiracy on Reason’s website, where constitutional law experts hang out and opine and then mostly inarticulate readers pile on, Steve Cabrizzi has pretty much slam-dunked the position that the 14th Amendment’s prohibition against those who supported the Confederacy in the Civil War holding office in the re-united United States of America can’t be used against Donald Trump. Unlike the convoluted and boot-strapping decision of the Colorado Supreme Court and the transparently partisan decision by Maine’s Secretary of State (both part of the now eight year-old effort by Democrats to use extra-legal means to destroy an adversary they fear and loathe), Bacrizzi’s brief is clear and straightforward.

First he explains the technical reasons why “Donald Trump is obviously not disqualified from seeking re-election under Section 3 of the 14th Amendment,” writing in part,

The words “President or Vice President” were deliberately edited out of the final version of Section 3 of the Fourteenth Amendment. This, together with the disqualification of presidential electors and vice-presidential elector who have engaged in “insurrection or rebellion” makes it clear that the Framers’ of Section 3 did not intend for it to apply to presidents or vice presidents who engaged in insurrection. This impression is augmented by the fact that Section 3 methodically applies in order from the highest office to the lowest office. Section 3 first disqualifies insurrectionist Senators and then Representatives. It then disqualifies all appointed civil or military officers; it then disqualifies insurrectionists from serving as a member of any State legislature, and it finally disqualifies in insurrectionists from serving as State executive or judicial officers. This careful hierarchy suggests that the phrase “or hold any office, civil or military, under the United States” does not apply to the President or Vice President, but applies only to appointed federal officers…

This fact is further confirmed by the Appointments Clause of Article II, Section 2, which says [The President shall nominate, by and with the advice and consent of the Senate shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States.”  The President does not appoint himself so obviously he is not an Officer of the United States under the Appointments Clause. Moreover, the Commission clause of Article II, Section 3 says that “[T he President] shall” i.e. must, “Commission all the Officers of the United States.”  No President has EVER commissioned himself or his Vice President either before or after the adoption of the Fourteenth Amendment.  The President is obviously not an Officer of the United States for the purposes of the Commission clause.

Continue reading →

Now THIS is an Unethical Lawsuit (But Not Frivolous!)

/ Jack Marshall / 6 Comments

The Hershey company (in Hershey, Pa.) has been sued by Cynthia Kelly in the United States District Court for the Middle District of Florida on behalf of herself and everyone who purchased Reese’s Peanut Butter Cup Halloween candies advertised as pumpkins and white ghosts. The class action lawsuit seeks $5 million in damages and a court order requiring the company to change its advertising next year so purchasers won’t feel that they have been victimized by a bait-and-switch. It alleges that Hershey falsely advertised the seasonal candy as having “explicit carved” out designs, and there were no such carvings in the actual products.

Kelly’s complaint says that she purchased a bag of Reese’s Peanut Butter pumpkins for $4.49 at an Aldi’s last October 2023 because she was impressed by the artistic carvings depicted in the advertisements and the packaging, and would not have bought the candy if she knew that it was uncarved. And she wasn’t alone in this painful disappointment, as shown by comments on Hershey YouTube ads written by heart-broken candy-lovers:

Continue reading →

Observations On The NeverTrump Section 3 Big Lie Push

/ Jack Marshall / 12 Comments

Maine joined Colorado in barring from its GOP primary ballot yesterday, as Maine Secretary of State Shenna Bellows (D) decided that she “had no choice.” She had no choice because she is a rapid partisan Leftist who, like many Democratic operatives in various positions of power within the legal establishment, she is determined that President Biden be rescued from his election peril by any means necessary. Trump’s actions before and during the January 6, 2021, riot in the U.S. Capitol do not justify charging him with inciting a riot, much less an “insurrection” that would trigger Section 3 of the 14th Amendment. Maine’s completely partisan and anti-democratic move is sure to be appealed along with Colorado Supreme Court’s finding last week that Trump could not appear on the ballot in that state under the 14th Amendment provision designed to keep members of the Confederacy that prevents insurrectionists from holding office. The U.S. Supreme Court will review the case, one hopes quickly, and had better resolve the issue of whether Trump can run again or if the nation will be thrown into Constitutional chaos by allowing some states to block him.

Continue reading →

If You Are Troubled By The Ferguson Effect, Wait Until The Aurora Effect Kicks In

/ Jack Marshall / 4 Comments

The surge in homicides following the Michael Brown fiasco in Ferguson, Missouri sparked a debate about whether the demonizing of police by the news media, lawyers seeking quick liability pay-outs every time a perp was killed in a confrontation with police, and progressive politicians demonstrations, and the anti-police hostility they engendered triggered the murder spike. City Journal contributing editor Heather Mac Donald, among others, identified a “Ferguson Effect,” in which police were pushed into passive law enforcement for fear of criminal prosecutions primed by political factors and the kind of life- and career-wrecking publicity that savaged Officer Darren Wilson, who was found by a grand jury to be blameless in Brown’s shooting. Since that 2014 ethics train wreck, the Ferguson Effect has metastasized thanks to the George Floyd freakout, the Black Lives Matters riots, and the conviction and imprisonment of the group officers involved. It is indisputable that proactive law enforcement is dangerous now both in the streets and in the aftereffects when events turn ugly.If police are going to be sitting ducks for moral luck prosecutions, it requires a martyr or a fool to take the kinds of risks today’s social and legal climate engenders.

Next up on the metaphorical social justice shooting gallery: paramedics.

Continue reading →

Musings on Jesse Otero, the Human Broken Window

/ Jack Marshall / 6 Comments

Jesse Leonardo Otero, 44, has been arrested 90 times for shoplifting in the Bay area of California, most recently this month. He is a drug addict, homeless, and supports himself by shoplifting and selling stolen property, often stealing from the same stores over and over again. He doesn’t discriminate, though, targeting small businesses, big-box stores, or whatever seems convenient at the time. He isn’t just lifting candy bars: when Jesse steals, it’s usually hundreds of dollars of merchandise at a time. Local police and store managers know him by name. The manager of Five Little Monkeys toy store in Albany, California, for example, says she has reported Otero to police more than 20 times. Jesse ranged far and wide in his shopping trips, and is an expert on the BART transit system, which he uses to hit stores at every stop.

Nobody has kept count of the number of days Jesse has spend in jail for his exploits, but it isn’t very many. The usual routine is that police give Otero a citation and release him. Sometimes, as with this month’s arrest, he is arrested and jailed for a short time, then let out of jail free, just like in Monopoly. All of this ridiculous pattern is due to California voters, in their wisdom, passing a law in 2014 that weakened penalties for everything Jesse does, like illicit drug use, vagrancy, petty theft, and shoplifting. Prosecutors now can’t file a felony shoplifting charge unless the items taken top $950 in value.

Multiply Jesse by several hundred (or thousands?) and you can understand why so many stores in California are experiencing ruinous shoplifting. Social justice warriors, advocates of “restorative justice” and those who regard the fact that a disproportionate number of those in prison are black as proof of systemic racism dispute the validity of the “Broken Windows” theory, but California’s experience is one more bit of significant evidence that the theory is sound.

Continue reading →

What Is The Ethical Way To Compensate Glynn Simmons?

/ Jack Marshall / 22 Comments

Hint: There isn’t one.

Glynn Simmons, 70, was convicted of murder in 1975. Yesterday he was exonerated in court after he had spent more than 48 years in prison. Well, on the plus side, he now holds the record for the longest time served by a wrongfully convicted inmate in the United States. That’s something, isn’t it?

Judge Amy Palumbo of Oklahoma County District Court declared Simmons innocent of the crime that had occurred during a liquor store robbery. As is often the case in such episodes, an eye witness got it wrong. As is also too often the case, it was determined that prosecutors withheld important evidence from the defense. It’s not all good news for Glynn: he was just diagnosed with cancer. The last time he was free, Simmons was 27 years old.

“Don’t let nobody tell you that it can’t happen, because it really can,” Simmons said a news conference after the ruling. Depressing but obviously true. The man’s life has been taken away from him. Those primarily responsible, a careless witness and unethical prosecutors, can’t be punished. It will take time for Simmons to get significant damages from the state, and time is what this justice system debacle robbed from him. There is no remedy.

No system is or can be perfect. The justice system has failed before and will fail again. That, however, does not mitigate the tragedy of Glynn Simmons’ ruined life. It only makes it more frustrating.

***

[Note: WordPress’s AI-recommended tags on this post; “Ben Simmons,” “NBA,” Brooklyn Nets”]

Ethics Hero: Edelson Law Firm Founder Jay Edelson

/ Jack Marshall / 2 Comments

The large plaintiffs’ law firm Edelson PC announced that it will boycott recruiting events at Harvard Law School as a consequence of Harvard University president Claudine Gay’s Congressional testimony shrugging off campus antisemitism as “free speech,” followed by Harvard’s subsequent endorsement of Gay’s leadership. The firm informed Harvard Law’s career services office in a letter that announced the firm will skip the upcoming January law school recruitment as well Harvard’s larger on-campus interviewing event in August, when major firms do their hiring of summer associates.

Firm founder and CEO Jay Edelson explained, “This is not about Harvard law students. This is about the leadership of Harvard and how much of a megaphone it has on the world stage. They should use that megaphone responsibly.” Edelson added, “I understand that this is not going to be as relevant to them than if Skadden Arps pulled out, but I’m hoping they start seeing that even the liberal firms think this is well past a line.”

Continue reading →

What A Surprise! Unethical Ex-Trump Lawyer Michael Cohen Has An Unethical Lawyer

/ Jack Marshall / 8 Comments

I guess that should be “another unethical lawyer,” since Trump’s disbarred fixer was previously represented by Lanny Davis, who previously spun for the Clintons.

This, however, is funny: Cohen’s current lawyer, in arguing to a judge that court supervision of his client should be terminated now thatCohen is out of prison, included three imaginary cases in his filing last month.

“As far as the court can tell,” Manhattan federal judge Jesse M. Furman, wrote yesterday, “none of these cases exist.”

Given that Cohen is Cohen and among the most unethical people with a law degree in the country, suspicion immediately was sparked that he was behind his lawyer’s fantasies. But this is the era of nascent SkyNet, and unwitting lawyers and paralegals have already been caught using chatbots for legal research, to their sorrow. Last June, for example, a federal judge fined two lawyers $5,000 for putting their names on a legal brief containing made-up cases and citations concocted by aspiring lawyer ChatGPT. The fines were widely derided as insufficient, but judges traditionally are sympathetic when lawyers misuse technology that the judges don’t understand….at least the first time around.

So maybe Cohen’s lawyer was fooled by a bot. Another possibility is that Cohen’s lawyer, Cohen-like, just cheated. I have been told by many litigators over the years that they routinely find fake cases in their adversaries’ briefs, memos and motions.

Furman has ordered Cohen’s attorney to provide copies of the three mystery decisions within a week, or provide a sworn declaration explaining “how the motion came to cite cases that do not exist and what role, if any, Mr. Cohen played in drafting or reviewing the motion before it was filed.”

Given the client, this story is as perfect a candidate for a Nelson as I could imagine.